Auleear v Secretary of State for the Home Department

This claim for judicial review is brought with the permission of Cranston J. It was initially one of a group of cases which challenged the legality of the Secretary of State of the Home Department’s (‘SSHD’) policy regarding the detention of asylum seekers. In a judgment of 7^th June 2016 that aspect of the claim was dismissed (R (MNK, Hossain and others) v SSHD [2016] EWHC 1331 (Admin)). In the meantime, on 23^rd November 2015 the SSHD had rejected further submissions on the Claimant’s behalf and certified both her asylum and human rights claims as ‘clearly unfounded’. By an amendment to her claim form, the Claimant challenged this decision as unlawful. Cranston J’s judgment did not deal with this aspect of the claim and it was this remaining part which came before me.

The Claimant is a national of Mauritius. She came to the UK in 2005. She initially had leave to enter which was renewed from time to time, but her leave to remain came to an end in 2011.

She says that in April 2011 her mother encouraged her to come to Paris where she was on holiday. The Claimant says that, while she was in Paris, her mother unexpectedly urged her to marry a Pakistani national, Zaka Ahmed. When the Claimant demurred, she says that she was forced nonetheless to take part in the religious marriage ceremony by threats from her mother. The Claimant then returned to the UK. Mr Ahmed’s present whereabouts seem to be uncertain, although the Claimant thought he had established permanent residence in France.

It is not necessary to describe the various applications which were made to the SSHD by or on behalf of the Claimant for further leave to remain in the UK, but eventually she did make a claim for asylum as a refugee or for humanitarian protection on the grounds that her removal to Mauritius would expose her to a well-founded fear of persecution or be contrary to Article 3 of the European Convention on Human Rights (‘ECHR’). The basis of both claims was that she feared that if she was returned to Mauritius her mother and/or her stepfather would treat her violently because she had abandoned her husband. They might also force her into a second marriage. To make good her claim for asylum she had to show that the persecution of which she had a well-founded fear was on one of the grounds set out in Article 1A of the Refugee Convention. The Claimant submitted that the violence she feared was because of her membership of a ‘particular social group’ – a group which she defined as women in Mauritius, or Muslim women in Mauritius or women who have become parties to an arranged marriage.

Mauritius is one of the states listed in s.94(4) of the Nationality, Immigration and Asylum Act 2002 – see s.94(4)(ii). As a result the SSHD is obliged to certify the claim or claims under s.94(2) as clearly unfounded unless the SSHD is satisfied that the claim is not clearly unfounded. The effect of a certificate is that the person concerned cannot appeal the decision to the First-tier Tribunal (‘FTT’) while in the UK.

I will need to return to the SSHD’s decision in more detail later, but in summary, its reasoning was as follows:

At the hearing before me, Mr Dunlop, on behalf of the SSHD, did not seek to uphold the certificate on the grounds that the possibility of internal relocation made the two claims clearly unfounded. He accepted that the small size and population of Mauritius meant that a Judge of the FTT might conclude that internal relocation was not an effective means of avoiding the ill-treatment which the Claimant said she feared. He also recognised that, if the certificate was upheld only because the Claimant could not arguably show the ill-treatment she feared was due to her membership of a particular social group, this would be of limited practical effect. In those circumstances, there could still be an appeal against the refusal of humanitarian protection. Nonetheless, as he rightly said, the SSHD had certified both the asylum and the humanitarian protection claim and I had to consider the legality of both limbs.

The SSHD had available to her the Claimant’s asylum interview (held on 26^th August 2015), the witness statement of the Claimant (dated 2015), the statement of her friend Nawsheen Goolamally, and the expert report, dated 18^th September 2015, of Dr Laura Jeffery, a lecturer in social anthropology at the University of Edinburgh. There were also the various submissions by solicitors on the Claimant’s behalf.

In her interview, the Claimant was asked what exactly she feared on her return to Mauritius. She replied at paragraph 29,

In her statement, the Claimant described how in Paris, her mother threatened her.

In her statement Ms Goolamally said that she had known the Claimant since childhood. Ms Goolamally now lived in the UK but she returned to Mauritius from time to time. Some time ago she had met the Claimant’s mother by chance in the street in Port Louis, Mauritius. The mother had made a threat against the Claimant’s life, although Ms Goolamally could not now recall the exact words. She met the Claimant’s mother again in April 2015 who said, ‘tell Zuberia she should go back to her husband or it will be bad for her.’

Dr Jeffery in her report explained that she had specialised in Mauritius for the last 16 years and had spent a total of almost 2 years in field work there. Although the US State Department Report on Mauritius in 2014 had said that forced marriage was not a reported problem, the Forced Marriage Unit of the Home Office and Foreign and Commonwealth Office had listed Mauritius as one of the countries in which forced marriage had occurred from January to May 2012. The Mauritian Civil Code prohibited forced marriage, although there was ‘certainly a long history of arranged marriage’ [my emphasis]. Forced marriage was on the decrease but still existed.

Dr Jeffery said that the prevalence of police corruption had led to the establishment of a Police Complaints Investigation Bureau in 1999, but this was under the direction of the Commissioner of Police and so lacked independence. In 2012 a Police Complaints Division was established in the National Human Rights Commission. The 2013 US State Department’s report had said that the penalties for corruption were still not effectively implemented.

Dr Jeffery addressed the issue of police corruption in the specific context of domestic violence. She said that despite legislation which had been revised on a number of occasions ‘international observers continue to express concern about the high level of domestic violence, underreporting, inadequacy of police response and failure to enforce protection orders.’ She referred to the following:

In the SSHD’s decision letter, so far as is material, the SSHD:

On the principal issues there was no dispute between the parties as to the law. Certification is only possible if the claim is ‘clearly unfounded’. That will be the case if, on any legitimate view, the claim cannot succeed. Conversely, a claim will not be clearly unfounded if on at least one legitimate view of the facts or the law it may succeed – see ZL and another v SSHD and Lord Chancellor’s Department [2003] EWCA Civ 25 [2003] 1 WLR 1230. That approach is essentially the same, whether or not the state to which the applicant is to be sent is listed in s.94(4). However, where the state is so listed, ‘the background facts can be expected to weigh against a valid asylum claim’ –see ZL (above at [59]. As Beatson LJ put it in FR (Albania) and KL (Albania) v SSHD [2016] EWCA Civ 605 at [57] the only difference between those states which are listed and those which are not is the starting point.

The Court’s task on a judicial review of the SSHD’s certificate is the usual one of investigating whether there is an error of law in the decision. There will be legal error if the decision was one to which no reasonable SSHD could have come. The courts must recognise that Parliament has given the SSHD a ‘gate-keeping’ or screening function – see FR (Albania) at [62], although, given the nature of the SSHD’s task and the obligation of the courts in this area to subject executive decisions to ‘anxious scrutiny’, the nature of the court’s review will be at the more intense end of the spectrum. As Lord Phillips said in ZT (Kosovo) v SSHD [2009] 1 WLR 348 at [23],

The concept of ‘sufficiency of protection’ goes back to at least Horvath v SSHD [2001] 1 AC 489. Lord Clyde considered the level of protection which, if lacking, would oblige other parties to the Refugee Convention to provide surrogate protection. At p. 510 he said ‘no one would be entitled to an absolutely guaranteed immunity [from persecution]’. He went on,

Where the applicant (as here) fears ill-treatment from non-state agents, the issue as to whether the state can provide a sufficiency of protection, will involve considering whether the state is both willing and able to provide such protection. So far as the ability of the state to do so, it is not enough that some individuals will be failed by the state’s criminal justice system. As Scott Baker LJ said in Atkinson v SSHD [2004] EWCA Civ 846 at [22] ,

In the seminal case of Islam and Shah v SSHD (above) the House of Lords found that women in Pakistan were a ‘social group’ for the purposes of the Refugee Convention and that the ill-treatment which the particular women feared was ‘by reason of’ their membership of that group. The decision confirmed that the relevant group could not be defined by reference to the acts of persecution which were feared since that would be to introduce circular reasoning into the definition. The ‘group’ might or might not see itself as a group. What was important was that the agents of persecution saw them as having some common feature. For this reason, it was not necessary that the ‘group’ had some degree of internal cohesion. Each of the grounds referred to in Article 1A of the Refugee Convention involved some form of persecution for a discriminatory reason. As Lord Hoffman put it, ‘The distinguishing feature of the present case is the evidence of institutionalised discrimination against women by the police, courts and the legal system, the central organs of the State.’ To satisfy the definition, an applicant had to show that the persecution in question was ‘by reason of’ one of the grounds then listed in the Convention. This did not mean that every member of the class or group had to suffer persecution, but there had to be some causal connection between membership of the class and the persecution which was feared.

As I have shown, part of the fear which the Claimant expressed in her asylum interview was that she would again be forced into a marriage against her will. I had not seen this passage when I queried in the course of the hearing whether the Claimant was saying that she feared a second forced marriage, but this does indeed appear to be part of her case. Because this aspect seemed to have been overlooked in the hearing, I gave the parties the opportunity to make brief written submissions on ‘whether taking the Claimant’s evidence at its highest means that it must be assumed for present purposes that the Claimant’s fear of a second forced marriage may also be believed’.

Both the Claimant and the Defendant accepted that this was so. However, Mr Dunlop submitted that, while it must be assumed that the FTT judge might accept that the Claimant had such a subjective fear, it did not follow that that subjective fear would be well-founded (for the purposes of the Refugee Convention) or that there was a real risk that it might occur (for the purposes of Article 3). He noted that there was no evidence that Mr Ahmed (the Claimant’s husband) would agree to a divorce, nor that, as a matter of law or religious practice, the Claimant would be able to marry a second time if she was not divorced from her present husband. These may be good points, but the difficulty for Mr Dunlop is that they do not feature in the SSHD’s decision. The SSHD did say that forced marriage in Mauritius was on the decline. Yet, on the Claimant’s account, in decline or not, it was something to which she had been subjected. In paragraph 12 of his skeleton argument, Mr Dunlop had, in my view accurately, summarised the three bases on which the SSHD had acted. Those bases did not include that the fear of forced marriage was ill-founded (other than because of the possibility of recourse to state protection or internal relocation).

If the Claimant was to be forced into a second marriage in Mauritius, then I agree with Ms Luh that it is of some significance that marital rape is not, apparently, a criminal offence. The source for that is a passage from the 2010 report of the UN Committee on the Elimination of Discrimination Against Women which was quoted in the report of Dr Jeffery. There was no other evidence as to whether things have moved on since 2010.

I turn from the specific fear of forced marriage to the Claimant’s more general fear that she might be ill-treated by her mother and step-father because she had left the man her mother had chosen for her and whom she had married. In respect of violence of this type, was the SSHD entitled to certify the claim on the basis that there was a sufficiency of state protection?

Mr Dunlop was entitled to observe that the US State Department Human Rights Report for 2014 had said that ‘most reported cases (of domestic violence) were prosecuted’ and this suggests the existence, rather than the absence, of state protection. However, the comfort to be drawn from this is considerably muted by its context. The paragraph in which this comment appeared began,

Mr Dunlop is right that the law does not require absolute state protection or complete elimination of risk. He is also right that the Claimant was not returning to live with Mr Ahmed. That, however, does not take him very far. Her fear was that (a) her mother and step-father would ill-treat her for running away from Mr Ahmed and (b) that her mother might force her into another marriage. Mr Ahmed’s absence from Mauritius was immaterial to both of those fears which, as I have observed, for the purposes of certification the SSHD accepted as credible. Her mother and her step-father had not actually ill-treated her in the past. But that could not be determinative for the purposes of certification. The SSHD had to recognise, for that purpose, that a judge of the FTT might believe the Claimant’s account and might believe that her relatives would indeed be inclined to treat her in this way. Besides, on the Claimant’s account, her marriage to Mr Ahmed had taken place because of her mother’s threats.

I agree with Mr Dunlop that the scenario which the Claimant described as awaiting her on her return to Mauritius was different from the paradigm of a wife fearing violence from an existing husband, but it was sufficiently similar that the approach of the Mauritian institutions to that paradigmatic domestic violence was relevant. As Ms Luh submitted, what has to be considered is the sufficiency of state protection, not in general, but for someone in the particular circumstances of the Claimant. It is right, as Mr Dunlop also asked me to note, that Mauritius has been designated without qualification. This stands in contrast to certain other states which have been designated for men only. The starting point, therefore, is that Mauritius is safe for both men and women. However, as the Court of Appeal stressed in FR that is only a starting point. The SSHD was only entitled to certify her claim as clearly unfounded if, on any legitimate basis, it was bound to fail. If a FTT Judge might conclude that the state was unwilling or unable to protect her from the violence she feared from her mother, her step-father, or some second husband (should she be forced into another marriage) then her claim could not have been certified.

I can see that on an appeal the Claimant may face formidable difficulties, but the certification hurdle is a demanding one. In my judgment, the SSHD was not entitled to conclude that her fears of ill-treatment were clearly unfounded because of a sufficiency of state protection.

Ms Luh argues that the insufficiency of protection which the Claimant would face is because she is a woman or a Muslim woman. She would not have even the nominal protection of the law against rape by some other husband whom her mother forced her to marry. The inadequacy of the effective protection of other laws is also because of her gender. Mr Dunlop argues that, while (as in the case of Pakistan in Islam) there may be institutional discrimination against women, the position in Mauritius is nowhere near as bleak. He cited a number of other examples of cases where the courts or tribunals have rejected claims that women were a particular social group.

However, the difficulty with all of these cases is that they concerned other countries and the issue which I have to address is fact specific. In one of the cases cited, R (Patel) v SSHD [2010] EWHC 1087 (Admin), the issue was whether the SSHD was entitled to certify, but Ms Luh was also entitled to observe that the others all concerned the substantive question of whether the particular applicant or appellant had succeeded in showing that the persecution she feared was because she was a woman (or some sub-group of women). As I have repeatedly stressed, my task is to consider whether the SSHD was entitled to conclude that the applicant’s case was clearly unfounded.

In my view the SSHD was not entitled to come to that conclusion. The reason is very much the same as for my conclusion that she was not entitled to conclude that there was clearly a sufficiency of protection. On the evidence, particularly of Dr Jeffery, if there was an insufficiency of protection, it was arguable that it was to do with the fact that the Claimant was a woman. Once again, if an appeal does take place, the Claimant may have grave difficulties in making good her claim to fear persecution on the grounds of her membership of a particular social group, but the SSHD was not entitled to conclude that such a case was clearly unfounded.

For these reasons I have decided that the claim succeeds and the SSHD’s certificate or certificates of the Claimant’s asylum and human rights claims must be quashed.